Time Recording and Billing for Employment Law Matters in Australia

Employment law occupies a unique position in legal billing. It spans both advisory and contentious work, involves a specialist tribunal system with its own costs rules, and serves two very different client bases — employers (often corporate, with budget approval processes and expectations of detailed billing) and employees (often individuals, under financial pressure, and highly sensitive to costs). The billing approach that works for an employer client restructuring their workforce is entirely wrong for an unfairly dismissed worker pursuing reinstatement.

This guide covers how to record time and structure billing across the main types of employment law work in Australia.

Advisory Employment Work

Employment contracts and policies

Drafting, reviewing, and advising on employment contracts, workplace policies, and enterprise agreements is typically well-suited to fixed-fee or capped-fee arrangements. The scope is usually definable at the outset — draft a standard employment contract, review a suite of workplace policies for compliance, or advise on the terms of a proposed enterprise agreement.

When billing on an hourly basis for advisory work, descriptions should identify the specific document being worked on and the issues addressed: "Reviewing and advising on restraint of trade clause in proposed Senior Vice President contract; considering enforceability under NSW common law principles and recommending amendments to geographical and temporal scope."

Workplace investigations

Investigating complaints of bullying, harassment, or misconduct is a distinct category of employment work that can be time-intensive and unpredictable. The investigation may involve interviewing multiple witnesses, reviewing communications, and preparing a detailed report. Each activity should be recorded separately, with witness interviews identified by name (or role, if anonymity is required) and the issues being investigated.

A common billing challenge with investigations is scope creep — an investigation that begins with one complaint may expand as additional complainants come forward or related issues emerge. Updated costs disclosure should be provided whenever the scope changes materially.

Redundancy and restructuring

Advising employers on restructuring — identifying genuine redundancy, managing consultation obligations under the Fair Work Act, drafting redundancy packages, and handling redeployment — generates billing across legal advice, document drafting, and client communications. Record separately the strategic advice on the restructuring approach, the drafting of consultation documents and correspondence with affected employees, any advice on enterprise agreement consultation requirements, and the preparation of individual separation agreements or deeds of release.

Fair Work Commission Proceedings

Unfair dismissal claims

Unfair dismissal is the most common contentious employment law matter, and it follows a relatively predictable pattern: application, response, conciliation, and if unresolved, hearing or conference. Each stage has distinct billing activities.

Initial advice and response: Taking instructions from the client (whether applicant or respondent), reviewing the circumstances of the dismissal, advising on merits, and preparing the Form F2 (application) or Form F3 (employer response). Record each activity separately — the initial conference, the document review, and the drafting of the application or response.

Conciliation: Record preparation (reviewing the file, preparing a conciliation brief, briefing the client), the conciliation conference itself (block entry with actual time, typically 1-3 hours by telephone), and follow-up (confirming outcomes, advising on next steps). Conciliation conferences at the Fair Work Commission are usually conducted by telephone and are shorter than court mediations, so the billing should reflect this.

Hearing: If the matter proceeds to a hearing, the billing approach mirrors other tribunal hearings — preparation of witness statements, outline of submissions, attendance at the hearing, and post-hearing submissions. Court attendance time should include all waiting time.

General protections claims

General protections claims under Part 3-1 of the Fair Work Act involve allegations that adverse action was taken for a prohibited reason (workplace rights, discrimination, union activity). These matters can be more complex than unfair dismissal claims and may involve interlocutory applications, substantial evidence, and jurisdictional disputes. Billing should reflect this additional complexity, with time recorded separately for each interlocutory step and each component of the substantive case.

Enterprise agreement negotiations

Advising on and participating in enterprise agreement negotiations generates billing across a long timeframe — negotiations can take months. Activities to record include reviewing the existing agreement and identifying issues for negotiation, preparing the employer's log of claims or responding to employee claims, attending negotiation meetings (each as a separate block entry), drafting and revising proposed clauses, advising on good faith bargaining obligations, and preparing the notice of employee representational rights and other procedural documents.

The Fair Work Commission Costs Regime

The costs regime in the Fair Work Commission is fundamentally different from courts. Section 611 of the Fair Work Act 2009 provides that each party bears their own costs. Costs orders are rare and are limited to situations where a party's application or response was vexatious, a party had no reasonable prospect of success, or a party unreasonably refused to participate in conciliation or conference.

This "no costs" environment has practical implications for billing. Clients need to understand that even if they win, they will not recover their legal costs. This makes cost management particularly important — a client who spends $30,000 on legal fees to win an unfair dismissal claim worth $15,000 in compensation has not achieved a commercially rational outcome, regardless of the legal merits.

For employer clients, the costs regime also affects the economic analysis of settlement. It is often cheaper to settle an unfair dismissal claim early — even one with poor prospects — than to incur the legal costs of a defended hearing. Advising clients on this cost-benefit analysis is billable time, and the description should reflect the strategic nature of the advice.

Billing Different Client Types

Employer clients (corporate)

Employer clients are typically more sophisticated consumers of legal services. They expect detailed billing, may require matter budgets or cost estimates before approving work, and will scrutinise bills against the agreed scope. They also generate a higher volume of advisory work — policy reviews, contract drafting, restructuring advice — that can be billed alongside any contentious matters.

For corporate employment clients, consider offering a matter budget that identifies the key stages and estimated costs for each. Provide monthly billing with a brief narrative summary of work done and progress made. Flag any departures from the budget as they arise, not after the fact.

Employee clients (individual)

Individual employee clients are often in financial distress — they have lost their job, they may have been the subject of workplace bullying, or they face disciplinary proceedings that threaten their livelihood. Billing sensitivity is essential.

Be transparent about costs from the first meeting. Provide a realistic estimate of the total cost of pursuing the claim and compare it to the likely outcome. Many unfair dismissal claims are worth between 4 and 26 weeks' pay — ensure the client understands this range before agreeing to hourly billing that could exceed the potential recovery.

Fixed fees for the initial advice and FWC application, with hourly billing for subsequent stages, can be an effective approach for individual employee clients. This gives the client certainty about the initial costs while preserving flexibility for the firm if the matter becomes complex. For more on structuring billing arrangements, see our article on retainer agreements.

Recording Time for Common Employment Activities

Employment law involves a high volume of short communications — phone calls with HR, emails about workplace issues, brief conferences with witnesses. These must be captured diligently to avoid time leakage. For detailed guidance on billing for short communications, see our article on billing for phone calls and emails.

Common time entries in employment law practice include attendance notes from client conferences about workplace incidents, reviewing workplace investigation reports, drafting and reviewing employment contracts and restraint clauses, preparing unfair dismissal applications and responses, attending FWC conciliation by telephone, advising on Award and enterprise agreement interpretation, drafting without prejudice settlement offers and deeds of release, and researching comparable FWC decisions on remedy.